Senators Want To Clean Up After Supreme Court Decision That Exposed Older Workers To Discrimination

On Thursday, Sens. Bob Casey (D-PA) and Mark Kirk (R-IL) will introduce the Protecting Older Workers Against Discrimination Act (POWADA), a bill aimed at reversing a 2009 Supreme Court decision that made it much harder for workers to prove they have been victims of age discrimination, a Congressional staffer told ThinkProgress.

In its ruling in the Gross v. FBL Financial Services case, the Supreme Court eliminated the ability to bring “mixed motive” cases against employers for discrimination against older workers. To win such cases, workers only had to prove that discrimination was one of the reasons their employers took adverse actions, and the employers then had to prove they would have made the same decisions regardless of age. After the ruling, however, workers have had to prove that age was the deciding factor, a much higher and more difficult standard of proof and one that didn’t fall on the employer. Meanwhile, some lower courts interpreted the decision to mean that workers have to prove discrimination was the sole cause.

POWADA would reinstate the lower burden of proof that existed before the ruling and was expressly stipulated in the Civil Rights Act of 1964. It would amend the Age Discrimination in Employment Act of 1967 to specify that age only needs to be one motivating factor in adverse employment actions, and it would also ensure that workers can use both circumstantial and direct evidence to prove their cases.

“Workers should be evaluated on their performance in the workplace — not their age,” Casey said in a statement to ThinkProgress. “The Supreme Court’s troubling decision in Gross v. FBL Financial is another blow to civil rights from this Court. This legislation is a commonsense way to provide a measure of accountability to employers who would discriminate against someone because of their age.”

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“All Americans should be free from discrimination of any kind, whether it be based on age, religion, race, sex, or origin,” Kirk said in a separate statement. “Those suffering from abuse at the workplace shouldn’t feel burdened by the law that is supposed to be helping them. I look forward to working with my colleague Senator Casey to pass this bill so all American workers are protected from age discrimination.” The bill’s changes could extend beyond older workers as well. In 2013, the Supreme Court issued a decision in University of Texas Southwestern Center v. Nassar similar to that in Gross, ruling that victims of racism and/or sexism at work also had to prove it was the only motivating factor rather than using the mixed motive framework. After the decision, Supreme Court Justice Ruth Bader Ginsburg called on Congress to change the post-Nassar framework via legislation. And by reinstating mixed motive under the Civil Rights Act, “POWADA would rectify this decision too,” a fact sheet on the bill states.

A similar bill to POWADA was introduced with bipartisan support in 2012.

There’s plenty of precedent for Congress taking action to change the outcome of a Supreme Court ruling, including the Pregnancy Discrimination Act, which corrected Court decisions that found pregnancy wasn’t a protected class; the Civil Rights Act of 1991, which changed Court decisions that had narrowly interpreted the original act; the Americans with Disabilities Act Amendment Act of 2008, which was meant to overturn a number of Court cases; and the Lilly Ledbetter Fair Pay Act, which gave victims of pay discrimination more time to bring a case after a Court ruling that decided otherwise.